Discussion of current legal issues

In the 1996 film Happy Gilmore, Adam Sandler plays Happy who is a down and out hockey player who puts his skills to the golf course to save his grandmother's house. Christopher McDonald plays Shooter McGavin, an arrogant golfer who is one of the top stars of the Pro Golf Tour. On the tour, Gilmore meets professional golfer Shooter McGavin, who sees Gilmore as bad for golf and a threat to his career. Inevitably the two lock horns and the following argument happens:

Shooter McGavin: [after buying grandma's house in an auction] You're in big trouble though, pal. I eat pieces of shit like you for breakfast!Happy Gilmore: [laughing] You eat pieces of shit for breakfast?Shooter McGavin: [long pause] No!

Such offensive profanity and vulgarity cannot be tolerated in America.

On the contrary. Allowing such speech is considered a bedrock principle underlying the First Amendment. Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 1989.

It is "often true that one man's vulgarity is another's lyric." and that free speech involves not only responsible speech but the right to speak foolishly and without moderation. Cohen v. California, 403 US 15, 25-26(1971); Baumgartner v. United States, 322 US 665, 673-74(1944). Thus foolish, vulgar statements, are protected speech. This is because the First Amendment must forever be seen as “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks which can contain language which is often vituperative, abusive, and inexact.” Watts v. United States, 394 U.S. 705, 707-08 (1969).

After all, even presidents like to use the word “shit.” Remember back in 2006 at the G-8 summit meeting as conflict heated up between Israel and the Lebanese terror group Hezbollah, a microphone picked up a candid moment between George W. Bush and British Prime Minister Tony Blair. Syria, Bush told Blair, should tell Hezbollah to "stop doing this shit." As the president himself demonstrated, shit and its variants are political speech. If Bush had told Tony Blair at the G-8 meeting that Syria needed to get Hezbollah to stop this "humbug" or this "no-no," it would have lost impact. How can you talk politics without these words? Isn't calling bullshit on politicians the essence of free speech and reason in a democracy?

The Michigan Court of Appeals considered a case involving that state’s anti-profanity law. Timothy Boomer was canoeing down the Rifle River in Michigan when he struck a rock, and was thrown overboard. Boomer began to curse persistently in such a loud voice that a police officer claimed to have heard him from a quarter-mile away. A man in a nearby boat testified that he, his wife and two young children were so appalled by the profane speech that they hurried away. The police officer ticketed Boomer, citing him for violating a more than 100-year-old Michigan law that criminalized the use of profane language in front of women and children. People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002). The Michigan Court of Appeals threw out Boomer’s conviction and overturned the Michigan law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to hold that the law violated the First Amendment’s guarantee of free speech and that it would be “difficult to conceive of a statute that would be more vague.”

Surely when profanity is directed at law enforcement it is not protected speech. Actually, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Speech is often provocative and challenging, but it is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987)

In State of South Dakota v. Suhn,2008 SD 128 (SD 2008) the South Dakota Supreme Court protected the speech of a man who yelled the following at a passing police cruiser as the bars let out around 2 a.m. in Brookings: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” In ruling for Marcus J. Suhn, the court wrote that “just because someone may have been offended, annoyed or even angered by Suhn’s words does not make them fighting words.” See also, City of Bismark v. Schoppert, 469 N.W.2d 808 (North Dakota 1991) (defendant who referred to police officer as “fucking, bitching cop,” and replied “fuck you” to an officer’s request for identification could not be convicted of disorderly conduct.) In Merenda v. Tabor, No. 12-12562, Non-Argument Calendar (11th Circuit 2013) held that the use of a barely audible “fucking asshole” to a law enforcement official was not fighting words and was, instead, protected by the First Amendment. In Duran v. City of Douglas, 904 F.2d 1372, 1377-78 (9th Cir.1990), the Ninth Circuit held that a police officer's stop of a car from which the appealing defendant was making obscene gestures and yelling profanities at the officer was unlawful because the defendant's actions were protected by First Amendment. In Brockway v. Shepherd, 942 F.Supp. 1012 (M.D.Pa.1996), the court found that a passenger in a car who extended "his middle finger" at a police officer did not engage in obscene conduct under the Commonwealth's disorderly conduct statute. See id. at 1016-17. Likewise, in Wisconsin, in State v. Smith, 2013AP2516-CR a defendant was charged with disorderly conduct and with unlawful use of a computerized communication system because he posted two comments on a police department Facebook page that read:

Fuck the fucking cops they ant shit but fucking racist basturds an fucking all of y’all who is racist[.]Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck off dicks[.]

Judge Paul Lundsten agreed with Smith and threw out the convictions. Specifically, the judge determined that Smith’s language did not constitute “fighting words” since they were vague, not made to a person’s face and did not produce imminent lawless action. Similarly, when a passing motorist shouted "sooey" to a police officer, he did not violate the statute because there was "no direct face-to-face contact or other exigent circumstances." Garvey v. State, 537 S.W.2d 709, 711 (Tenn.Crim.App.1975); see also Matter of Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn.1978) (when young girl shouted obscenity to police officer who was standing fifteen feet away "rather than eye-to-eye, there was no reasonable likelihood that [the words] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person"); Hershfield v. Commonwealth, 14 Va.App. 381, 417 S.E.2d 876, 877-78 (1992) (when one neighbor shouted obscenity to another, "distance and barriers" precluded an immediate breach of the peace).

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Matal v. Tam, 582 U.S. ___ (2017) (provisions of the Lanham Act's prohibiting the registration of trademarks that may "disparage" persons, institutions, beliefs, or national symbols violates the First Amendment), aff., In re Tam, 808 F.3d 1321 (Fed. Cir. 2015). It simply is not the government's role to decide what language is acceptable and what language is not. That is for the marketplace of ideas to decide. As Justice Jackson told us, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In the end, it must be understood that the way to expose falsehood and fallacies is more speech, not enforced silence, since freedom to think as you will and to speak as you think are means indispensable to American democracy. Whitney v. California, 274 U.S. 357, 375 (1927), Brandeis, J., concurring.

Unlike some of her other colleagues (such as former Sen. Frank Lasee (R-DePere appointed to state job by Gov. Walker and State Rep. Chris Taylor and State Sen. Jon Erpenbach favor legalizing medical marijuana) who expressed support for cannabis law reform by investing in stock of the Ontario based Canopy Growth Corp., State Se. Leah Vukmir has refused to hold a hearing on medical cannabis legislation. Vukmir is the Republican challenger to U.S. Senator Tammy Baldwin. However, Wisconsin law passed in April 2017 made it legal to possess medical CBD oil with a certification from a doctor. It did not allow the sale of medical CBD oil.

As more states legalize both medical and recreational marijuana, products containing extracts from the plant are appearing on shelves around the country too. Cannabidiol, commonly abbreviated as CBD, is one such compound that’s now available in various formulations at smoke shops, health food stores and dispensaries. Though CBD is extracted from cannabis, unlike another cannabinoid, THC, it does not have psychoactive properties. So why is this compound that doesn’t provide a high so helpful? It’s all about the number of therapeutic effects associated with the substance.

In the Journal of Epilepsy Research in 2017, summarizes three recent placebo-controlled trials for patients with seizures who received a purified CBD product alongside another antiepileptic drug. These studies found that CBD performed better than the placebo with respect to reducing seizure frequency. However, the author writes that the mechanism of action for CBD is unclear; it might work with other drugs to amplify their effects, rather than directly reduce seizures on its own.

A 2014 review of cannabidiol’s potential therapeutic role in epilepsy and other neuropsychiatric disorders similarly presents reports of the efficacy of the compound for these conditions, though it points out that mechanisms of action are not known and data from double-blind, randomized, controlled studies is lacking.

More rigorous studies are coming out — a double-blind, randomized, controlled clinical trial examining the role of cannabidiol as an additional therapy to treat schizophrenia published March 2018 finds that the experimental group had lower levels of psychotic symptoms than the placebo group. The experimental group also were more likely to be rated as improved and “not severely unwell,” by their doctors. Additional studies support the finding that CBD might possess antipsychotic effects, a review published in JAMA in 2015 indicates compared with placebo, cannabinoids were associated with a greater average number of patients showing a complete nausea and vomiting response, and reduction in pain. The report does include two studies evaluating CBD in treatment of psychosis found no difference between the experimental and control groups.

Some think the compound might have anti-anxiety effects. Scholars at the University of Sao Paolo summarize a number of human and animal studies, conclude that the compound “promotes antianxiety effects in humans,” and propose a few potential pharmacological mechanisms through which it might work. Individual studies examine the effects of the substance in patients with social anxiety disorder, fear of public speaking and paranoia, generally finding beneficial effects, though the studies all have relatively small sample sizes.

Once you see those lights and hear that siren, simply follow these steps: Pull over Take a breath Try to relax Prepare to remain calm and polite

You may believe the cop is completely wrong for pulling you over. Maybe she is. But fighting or arguing with a cop out on the street is dangerous and potentially lethal. Better to fight the stop in court.

Usually cops are looking for what they believe is evidence of intoxication when they pull over a vehicle. From the moment the officer approaches your vehicle, you are being observed and assessed. Every question is an attempt to evaluate your sobriety. That may seem unnerving, but keep in mind you have not been found guilty of OWI--the police have simply pulled you over to investigate an unsubstantiated assumption that you might be intoxicated.

Staying calm during a traffic stop can help you stay tuned into exactly what's happening, what's being said, and how to respond appropriately.

Any law enforcement officer who has jurisdiction may conduct a traffic stop, including:

Wisconsin State Trooper

County Sherriff’s Deputy

City Police Officer

An officer cannot conduct random traffic stops

Reasonable suspicion that a traffic infraction is being or has been committed is required to conduct a legal traffic stop.

“Pre-textual” stops are not allowed – this involves an officer using a valid traffic infraction as the reason to make a stop when the officer actually suspects the driver is committing a more serious crime and wants to investigate that crime.

DUI checkpoints are an exception to this rule. The U.S. Supreme Court has ruled that the dangers from drunk driving outweigh the “degree of intrusion” of sobriety checkpoints and they are an exception to the search and seizure provisions of the U.S. Constitution.

Identifying information

Although your right to remain silent applies during a traffic stop, you should provide your name, vehicle registration and proof of insurance to the officer.

If you refuse to provide any information at all, you risk being detained so the officer can determine who you are.

Your right to remain silent

Both the U.S. and Wisconsin constitutions provide you with the right to remain silent during a traffic stop

You do not have to answer questions relating to your consumption of alcohol or drugs, the presence of contraband in the vehicle or your immigration status. The police may use this as a basis to detain you however.

Persons who are arrested for operating under the influence of alcohol are read a form call the "Alcohol Influence Report." This standard form contains the Miranda Warning (i.e. "you have the right to remain silent . . . ) YOU SHOULD NOT ANSWER THE QUESTIONS ON THE FORM.

Searching your vehicle

The 4th Amendment to the U.S. Constitution requires a law enforcement officer to obtain a warrant, based on probable cause, before conducting a search and seizure unless one of the many exceptions to the warrant requirement applies.

The U.S. Supreme Court has ruled that an individual’s expectation of privacy is reduced in a motor vehicle for purposes of the warrant requirement found in the 4th Therefore, a warrant is not required.

The police must, however, have probable cause to conduct a search of your vehicle unless you consent to a search.

You are never required to consent to a search of your vehicle.

If you consent, your attorney is effectively precluded from arguing that the search was illegal.

K-9 searches

A search of your vehicle by a K-9 unit (drug-sniffing dog) is evaluated differently.

A law enforcement officer must have reasonable suspicion that the motorist is, or has, committed a criminal offense in order to detain the driver until a K-9 unit can arrive to have a dog sniff (which is not considered a search!!).

Once the original purpose of the stop is over, the motorist must be allowed to leave unless the officer has the requisite reasonable suspicion necessary to prolong the stop to call in a K-9 unit.

Search incident to arrest or impoundment

The police may search your vehicle during a traffic stop if an arrest has been made and they have a reasonable belief that stolen or illegal goods will be found in the vehicle.

The police may also conduct an “inventory search” of your vehicle if the vehicle has been impounded. The rationale for allowing an inventory search is twofold. First, it creates a detailed list of the owner’s personal property to ensure that nothing is missing when the vehicle is returned. Second, it protects the police in the event there is something dangerous in the vehicle.

Field sobriety tests during a traffic stop

If an officer suspects that a motorist is under the influence of drugs or alcohol, the officer may ask the motorist to step out of the vehicle and perform a series of field sobriety tests (FSTs).

You have the right to refuse to perform the FSTs. While you are required by law to take the breathalyzer test after you are arrested as a condition of implied consent in Wisconsin, you are not required by law to submit to a breath test or sobriety tests in the field, unless you are a commercial driver. Know, however, refusal to perform a field sobriety test is admissible as evidence of probable cause to arrest for OWI and that admission is not considered a violation of your Fifth Amendment right against self-incrimination.

If you have a regular driver's license and refuse a field sobriety test in Wisconsin, expect to be taken into custody as a result. You must weigh for yourself if it is worth spending time in jail to deprive the prosecution of evidence it will use to convict you.

Police can administer on the street a “portable” or “preliminary” breath test (PBT). Prosecutors cannot refer to PBT results during OWI trials

The officer administering the FSTs determines if you passed the tests.

The results of a FST are admissible at trial. In Wisconsin, courts say FSTs are not scientific tests. They are merely observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The reliability or unreliability of a FST is for a jury to decide.

Contact MeIf you have additional questions or concerns relating to a traffic stop in the state of Wisconsin, it is in your best interest to consult with an experienced criminal defense attorney. In Wisconsin contact Paul Ksicinski Law 24 hours a day at 414-530-5214.